[The] decision to file complaints . . . . is an a fortiori example of a discretionary function . . . . As one Court notes,

Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and accordingly, courts have uniformly found them to be immune under the discretionary function exception.

According to Pooler, claims based upon an erroneous decision to prosecute a suspect later shown to be innocent of the crime for which he was arrested are not actionable since the officers' decision to arrest and prosecute is a discretionary function of law enforcement officers. As noted previously, this determination applies for purposes of establishing absolute immunity from state tort actions as well as for purposes of the FTCA, the context in which Pooler was decided.

With respect to the FTCA, however, there is another issue to consider. The intentional tort proviso, 28 U.S.C. § 2680(h), appears to waive sovereign immunity for assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution when those torts are alleged to have been committed by investigative or law enforcement officials of the United States. Nevertheless, the Pooler court held that a plaintiff may not recover for the acts or omissions of such an officer without first, "Clear[ing] the hurdle of the discretionary function exception". 787 F.2d at 872. In short, according to Pooler, liability cannot attach to an arrest simply because it was erroneous. Even under the intentional tort proviso, the arresting officers are performing a discretionary function when they determine whom to arrest. Consequently, they are subject to liability only when they commit one of the intentional torts enumerated in the statute in the course of making an arrest, executing a search or seizing evidence.

Applying these legal principles to the facts alleged here, it is clear that the individual defendants are immune from liability for the state law torts alleged because they were acting within the scope of their employment and were performing a discretionary function. With respect to the same torts alleged against the United States under the Federal Tort Claims Act, it is clear that, to the extent that Rourke seeks compensation for having been erroneously arrested and charged due to a flawed investigation, the discretionary function exception precludes the claims against the government in that the manner of conducting an investigation and the decision to seek an arrest warrant are the kind of "quintessentially" discretionary activities for which sovereign immunity has not been waived. To the extent, however, that plaintiff alleges that he was assaulted in the course of being arrested, the government is not protected from liability. Thus, all of the state tort claims against the individual officers will be dismissed and all tort claims brought pursuant to the Federal Tort Claims Act will likewise be dismissed except for the allegations of assault in the course of making the arrest.

Turning to the Constitutional claims, we note that those based upon the United States Constitution are asserted pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986, only. Under the present circumstances, these claims are not viable.

Here, none of the foregoing requirements have been met. First, it is clear that the defendants were acting under color of federal, not state law, in that the arrest was effected with a warrant issued for a violation of the United States criminal code by a federal magistrate who ultimately disposed of the case. Thus, no matter what the state actors' participation in the incident may have been, state action is absent from any violation of Constitutional rights which may have occurred because of the investigation, the filing of criminal charges or the arrest, all of which were accomplished pursuant to federal law.

Moreover, even if the state action requirement could be fulfilled simply by the participation of state and federal officers in a common plan, the allegations against Lopatcong Township officials, as well as the allegations of conspiracy between them and the federal officers, are general and conclusory. It is impossible to determine how much, if at all, the the state officials participated in the injuries allegedly suffered by the plaintiff. Plaintiff makes no factually specific allegations against Lopatcong Township and/or its Chief of Police asserting only that those defendants failed to follow acceptable investigative procedures, conspired with the FBI agents and attempted to harass and intimidate Rourke into confessing to the crime. Consequently, neither the Court nor the defendants can determine from the Complaint whether there was substantial participation by the state actors in the alleged Constitutional violations or whether there was any sort of joint or cooperative action between the federal defendants and the state actors, much less whether any such joint activities could be termed a conspiracy. The bare allegations of conspiracy without any mention of the facts which support them fall short of acceptable civil rights pleading standards.

Ordinarily, the Court would grant plaintiff the opportunity to amend the complaint to correct its deficiencies. In this instance, however, such an amendment would be unavailing in light of our prior conclusion that the actions taken by all law enforcement officials involved in this case were taken pursuant to federal law. Without color of state law, the presence of state officials cannot subject federal officials to liability under § 1983 even if sufficient facts were alleged from which it could be determined that the participation of the state officials in the alleged violations was substantial and that there was a conspiracy between them and the federal agents.

Finally, now that all of the state defendants have been dismissed from the case, it is far from clear that the FBI agents could be held liable for civil rights violations pursuant to § 1983 on the theory of having conspired with the state officials. (But see, Darr v. Wolfe, 767 F.2d 79 (3d Cir. 1985). Conspiracy with a state official will subject an individual defendant to liability for § 1983 claims even though the state official is immune from liability.)

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